Worksession to
review the Water Protection Ordinance with respect to stream
crossings for road and driveways and to determine if an ordinance
amendment is needed

STAFF CONTACT(S):

Tucker, Foley,
Davis, Graham, Brooks, Ambler

LEGAL REVIEW:Yes

AGENDA DATE:

March 12, 2008

ACTION:XINFORMATION:

CONSENT AGENDA:

ACTION:INFORMATION:

ATTACHMENTS:Yes

REVIEWED BY:

BACKGROUND:

The purpose of this
worksession is to review section 17-321(4) of the Water Protection Ordinance,
which allows stream crossings in protected stream buffers in specific
circumstances and determine if an ordinance amendment is needed. As part of the
public comment at the February 6, 2008 consideration of an amendment to the
Water Protection Ordinance (WPTA2007-001, Attachment A), the Board became aware
that the Program Authority’s interpretation of this ordinance requirement may be
more restrictive than was envisioned by the Board. The Board agreed to consider
how this section should apply at a future meeting. The issue was revisited at
the February 13, 2008 Board meeting and staff was directed to schedule a work
session for the Board to review its options.

STRATEGIC PLAN:

Protect the County's
Natural, Scenic and Historic Resources

DISCUSSION:

The following is the
relevant section of the Water Protection Ordinance:

Sec.
B17-32117-321
Types of development which may be allowed in stream buffer by program authority.

Development in a stream
buffer may be authorized by the program authority in the circumstances described
below, provided that a mitigation plan is submitted to, and approved, by the
program authority pursuant to section 17-322:

4.
on a lot on which the development in the stream buffer will consist of
the construction and maintenance of a driveway or roadway, and the program
authority determines that the stream buffer would prohibit reasonable access to
a portion of the lot which is necessary for the owner to have a reasonable use
of the lot;

The issue is interpreting
this ordinance section with respect to “…which
is necessary for the owner to have a reasonable use of the lot” The Program
Authority has taken a narrow interpretation of this language with the assumption
it was intended to avoid issues of taking property. Typically, this means the
development is only allowed a stream crossing when it is found necessary to
establish the first dwelling on the property.

Next, the Program Authority is guided by Section 17-322 (D). in evaluating the
approval of a mitigation plan, as follows:

D. Each mitigation
plan shall be evaluated by the program authority based on the following
criteria:

1. whether all
reasonable alternatives to development in the stream buffer have been explored
and exhausted;

2. whether the
development in the stream buffer is the minimum necessary and is conducted in a
manner that will be least disruptive to the natural functions of the stream
buffer; and

3. whether best
management practices will effectively mitigate adverse impacts from the
encroachment on the stream buffer and its natural functions.

With this background, the
issue is whether the ordinance intent is to provide the minimum use necessary to
avoid a claim of taking property or whether the ordinance anticipates the
property owner’s ability to develop their property. From this, staff believes
the enforcement spectrum offers three approaches:

1. The current
approach, which assumes streams crossings are prohibited except where absolutely
needed.

2. A middle ground,
where staff considers each circumstance on a case by case basis and provides
some limited use of the property based on a balance of the desires of the
property owner and protection of the stream.

For convenience, these three
approaches will be respectively called prohibition, discretionary, and allowed.

Many of the issues with a
prohibition approach have already been noted by citizens and Board members. It
is the most restrictive to the property owner and the most protective of the
stream. One reason to support this approach is it recognizes that mitigation of
impacts is an imperfect solution. While mitigation is intended to address
impacts, there is usually a net loss to the stream’s value as a natural
resource. For example, planting the outer perimeter of a stream buffer enhances
the quality of filtering vegetation but it does not address the obstacle a
culvert in the streambed creates for organisms moving up and down the stream. It
should be noted the current ordinance does not limit stream crossings, or any
other disturbance of the buffer, with agricultural or forestry operations.
Thus, the Comprehensive Plan’s intended use of the Rural Areas for agriculture
and forestry is not curtailed. In enforcing this approach, staff routinely looks
to the Comprehensive Plan for guidance on reasonable use of property. Among the
points to consider with this approach are:

·It prioritizes
protection of stream over the property owner’s ability to develop the property.
It provides for minimal relief to the property owner, but it does not consider
the potential development value of the property.

·It is the
easiest to understand and administer. The property owner and staff both clearly
understand what is allowed and prohibited. Staff’s workload is the smallest
with this approach. The property owner may not like the answer, but he or she
has a firm answer.

·It recognizes
that mitigation is far from a perfect mechanism and some net loss of stream
function is a likely outcome.

A discretionary approach
attempts to balance the protection of the stream and the property owner’s
ability to develop the property. Staff finds this the most difficult approach
to administer and applicants find it the most frustrating. For example, consider
a property where all of the development rights could be exercised without
crossing the stream if the applicant is willing to limit the septic fields to
three bedroom houses and keep the lots at the minimum two acre size. Should
staff be able to demand this limitation? Should staff be able to demand
redesign of a subdivision plat if it appears possible to reduce impacts to the
stream buffer but it results in fewer lots? Should staff be able to require the
applicant to have a soil scientist exhaust all possibilities for septic fields
without crossing the stream? All of these situations have staff exercise
considerable discretion but puts them into direct confrontation with the
applicant. In similar discretionary situations, staff finds each new project
starts with the established standard as a starting point and the applicant
argues for additional consideration based on the unique characteristics of their
property. The end result is either an ongoing erosion of the standard or an
ongoing confrontation where applicants complain of a frustrating process and
portray staff decisions as arbitrary and capricious. Among the points to
consider with this approach are:

·It attempts to
balance protection of the stream with the ability of the property owner to
develop their property.

·It is the most
difficult to understand and administer, with considerable staff discretion based
on the unique set of circumstances with each application. This translates into
considerable staff time and applicant frustration.

·Property
owners will need an approved plan to have assurance that an envisioned
development is allowed.

An allowed approach starts
with the assumption stream crossings are permitted and attempts to mitigate the
impacts using approval conditions. Staff finds this approach easier to
administer than the discretionary approach and applicants find it much less
frustrating. With this approach, stream crossings could be added to the list of
allowed uses in section 17-320 of the Water Protection Ordinance, with specific
approval conditions. Under this approach, staff assumes the property owner has
the right to cross the stream when there is intent to use property on the other
side, provided certain minimum conditions are satisfied. To illustrate this
approach, staff has provided Attachment B. Among the points to consider with
this approach are:

·It establishes
a balance point between the use of the property and protection of the stream
that assumes use of the property and then attempts to minimize impacts to the
stream.

·It can be
relatively easy to understand and administer. While prohibition is easier to
administer, having simple well defined conditions for approval removes much of
the confrontation from the process.

·Property
owners have some assurance as to what is allowed with their property. While
staff will still need to verify the conditions are satisfied before allowing the
activity, it is usually simple to determine if those conditions restrict the
development potential of the property

BUDGET IMPACT:

No impact to the County
budget has been determined. This provision primarily affects Rural Area
property where land is typically taxed based on land use rather than development
potential. As noted above, the discretionary approach requires additional
staff resources and may impact staff’s ability to respond to other issues. The
funding for staff’s review can be recovered through fees.

RECOMMENDATIONS:

1.If the Board
believes the intent of section 17-321 (4) is to provide the minimum relief
necessary to avoid claims of taking of property, staff recommends the Board
affirm the Program Authority’s current interpretation. Staff will then develop
ordinance language to better clarify this intent.

2.If the Board
believes a stream crossing should be allowed for the development of property,
staff recommends the Board include stream crossings to section 17-320 of the
Water Protection Ordinance as an allowed use, with conditions similar to those
provided by staff in Attachment B. If this approach is selected, staff will
proceed with development of the appropriate ordinance amendment.

3.If the Board
believes it is more appropriate to consider the unique set of circumstances with
each proposed development, staff recommends Board amend the language of sections
17-321 and 17-322 to provide for case by case evaluation of need in the
development of property. If this approach is selected, staff believes language
similar to that in Attachment C is appropriate and will proceed to proceed with
an ordinance amendment using that draft.